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Nintendo’s Fight Against Emulation

In the current trend of pop-culture; nostalgia, remakes, reboots, and any other “re-works” that come to mind, seasoned gamers and newcomers alike yearn to revisit video game classics through the newest consoles. Current consoles such as the Xbox Series X/S and PlayStation 5 do offer backward compatibility, but certain games are excluded due to compatibility issues. 


For some, emulation is the answer.


Video game emulators give players the ability to enjoy their games without the need for the original console intended.


Companies such as Sony and Nintendo provide their own official emulators such as Nintendo Switch Online, PlayStation Plus, that allow gamers to access some of their childhood games under a subcription based system. For some consumers however, having classic games behind a paywall or a new flagship remaster made for current generation systems is less than ideal for accessibility and affordability.


Instead, classic game enthusiatic turn to open-source emulators for a trip down memory lane. In addition to allowing computers to ROM (ready only images) of a gamer’s old games, it also gives gamers the ability to modify their current copies as well as homebrew demos and new games for the old and discontinued consoles.


Back in March, the creators of Dolphin announced that their emulator software would be available to SteamDeck users later in the year. The program would allow gamers to play their old favorite games such as Metroid Prime or Super Mario Galaxy without the need for a subscription or having to pay extra for a newer edition. 


“We’re pleased to finally tell the world of our experiment,” the creators wrote on their website. “This has been the product of many months of work, and we look forward to getting it into users’ hands soon!”


However, plans changed as the Dolphin team released a statement on May 27 that the project would be indefinitely postponed. 


“We were notified by Valve that Nintendo has issued a cease and desist citing the DMCA [Digital Millenium Copyright Act] against Dolphin’s Steam page, and have removed Dolphin from Steam until the matter is settled,” they stated. “We are currently investigating our options and will have a more in-depth response in the near future. We appreciate your patience in the meantime.”


Nintendo spokesperson Eddie Garcia stated in an article with The Verge on the risks emulators have on the company’s protection protocols while insinuating possible illegalities associated with Dolphin. 


Other gaming companies like Nintendo have publicly criticized emulation as it encourages users to pirate games from unauthorized file sharing websites. In some instances, sharing confidential assets and cancelled games that were not meant for distribution. One prime example was the leaked beta versions of the then cancelled Star Fox 2 from hackers in the late 1990s.


“Using illegal copies of games harms development and ultimately stifles innovation,” Garcia stated. “Nintendo respects the intellectual property rights of other companies and in turn expects others to do the same.”


This wasn’t the first time Nintendo stance as the company has a long history of fighting emulators, with the company bringing legal action against two websites that provided ROMs (or game files) and emulators in 2018.


With emulators painted in a negative light by developers, many wonder if programs such as Dolphin or Project 64 are legal under law.


Well, both yes and no. Although the program is legal, game emulation is only legal if one bought the physical copy of the game and created a digital copy out of it.

In Sony Computer Entertainment v. Connectix Corportaion, it was ruled that making copies of BIOS software (such as video games) was protected by fair use for the purpose of reverse engineering (or development purposes). There is a common misconception that consumers can just download a digital copy of a game they originally owned in a different format, though these instances are often a gray area.  



According to an email from Nintendo, Dolphin violates DMCA Section 1201(a)(2)  as it provides a cryptographic key that allows encrypted Wii game discs to be read on the program, giving Nintendo the momentum to remove Dolphin off Steam.


1201(a)(2) states that companies are not allowed to host copyright circumvention technology:


“ No person shall manufacture, import, offer to the publice, provide, or otherwise traffic in any technology product, service, device, component, or part thereof, that


(A)is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;


(B)has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or


(C)is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.”


Though many fans suspect that Nintendo was the sole proprietor to the ordeal, Valve, the company behind Steam and its hybrid console, also contributed to Dolphin's takedown.


According to Valve spokesperson Kaci Aitchinson Boyle, Valve was the one that informed Nintendo of Dolphin’s upcoming release on Steam. 


“We operate Steam as an open platform, but that relies on creators shipping only things they have the legal right to distribute,” Valve explained in a separate statement. “Sometimes third parties raise legal objections to things on Steam, but Valve isn’t well positioned to judge those disputes- those parties have to go to court, or negotiate between themselves.”


Valve added that when there are disputes that cannot be handled under the DMCA process, the company will stop distribution on the content in question until the matter is resolved. Valve also stated that providing content that could be taken down would not be ideal as it “can be disruptive to Steam users.”


With Nintendo’s strong stance against emulation and Valves decision to take a step back from this discourse, Dolphin will not be making a reappearance on Steam anytime soon.

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Tags: #Dolphin #Nintendo #Steam #Valve #Emulation


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